Personal data of voters and electoral consultations


(by Michele Gorga) We are in the home straight for the Regional, Municipal and referendum elections, but there was little election advertising, also thanks to the Covid emergency. Political communication initiatives, connected to electoral consultations, constitute a particularly significant moment of participation in democratic life as provided for by art. 49 of the Constitution. Precisely in view of the consultation on 20 and 21 September, also in light of the new regulatory framework introduced by the EU Regulation 2016/679 and by the Privacy Code 196/2003, it seems appropriate to recall the provision of the Privacy Guarantor n. 96 of 18 April 2019 intended for all subjects who are involved in the elections for various reasons.

The provision, which calls for a timely observance of the principles in force regarding data protection, highlights the need to guarantee data subjects the exercise of rights by drawing attention to the main cases in which parties, political bodies, committees of promoters and supporters as well as individual candidates, may use the personal data of the interested parties for propaganda initiatives in compliance with the fundamental rights and freedoms of the interested parties pursuant to art. 1, par. 2 of the regulation on the basis of the conditions of lawfulness of data processing in the context of electoral activity.

In general, the provision of the Guarantor provides that the processing of data can be carried out, to guarantee the rights and freedoms of the interested parties, on the basis of some conditions of lawfulness, including the preliminary acquisition of consent, which must be free, specific, informed and unequivocal (articles 6, paragraph 1, letter a) and 7, Regulation), as well as explicit where the processing concerns particular categories of data (article 9, paragraph 2, letter a), Regulation) . The consent, therefore, must be requested with specific and distinct formulation with respect to the further purposes of the processing and must also be documentable (e.g. in writing or on digital media) and the owner, then, must be able to demonstrate that the the interested party has given his consent to the processing of his data (see articles 5, par. 2 and 7, par. 1, Regulation).

With regard to natural persons registered in non-political associations such as trade unions, professional, sports, category associations, etc., organizations which, therefore, do not explicitly pursue political purposes, the data of the members cannot be processed. and disseminated to carry out electoral propaganda and related political communication initiatives but this becomes possible only if - the owner organizations - acquire the consent of the interested party, subject to information that must be prepared in such a way as to leave the adherents the possibility to provide or not, in full freedom and awareness, specific, autonomous and differentiated consents with respect to the ordinary purposes pursued by the organization that owns the data. However, entities, associations and organizations are not required to request the consent of the interested parties when the direct pursuit of electoral propaganda and related political communication purposes is also among the statutory purposes of the organization.

Moving on to the restricted category of CIG Z1C2E1C075 sympathizers and funders of political organizations, personal data collected by political parties, movements and other formations, as well as by individual candidates, on the occasion of specific initiatives (petitions, bills, requests for referendums , collections of signatures or funds, etc.), of these aforementioned subjects, can be used only with their explicit consent. The consent to the processing, on the other hand, is not required (Article 9, par. 2, letter d), Regulation) if the support provided to a specific initiative on the occasion of the provision of data involves a particular form of "adhesion" to the subject policy and its program, such that, based on the statute, the articles of association or other pre-existing set of rules, the interested party may lawfully be contacted subsequently in view of further initiatives compatible with the original purposes of the collection (eg . of political communication or electoral propaganda, Article 5, paragraph 1, letter b) of the Regulations), however these circumstances must be adequately highlighted in the information to be provided.

A case study of the main cases, even if not exhaustive, of the main cases in which the processing of personal data for the purposes of electoral propaganda and related political communication is allowed on the basis of the conditions of lawfulness identified on the basis of public sources thus becomes possible. Thus, personal data extracted from "public" sources - that is, information contained in registers or lists held by a public entity (eg Municipality) and at the same time accessible on the basis of an express provision of law or regulation - can be used for electoral propaganda and related political communication purposes, without requiring the consent of the interested parties pursuant to art. 6, par. 1, lett. f), of the Regulations, in compliance with the conditions, limits and methods eventually established by the legal system to access these sources or to use them (eg the obligation to comply with the purposes established by law for certain lists; identification of the person requesting a copy, if access is allowed only during certain periods; Articles 5, paragraph 1, letters a) and b), 6, par. 2, lett. b), Regulation and art. 2-ter, paragraph 3, and 61, paragraph 1, of the Code).

In particular, personal data extracted from public directories can be used for the pursuit of electoral propaganda and related political communication purposes, such as: electoral lists held in municipalities, which "can be issued in copies for application purposes the discipline on the subject of active and passive electorate "(art. 51 of Presidential Decree March 20, 1967, n. 223); the provisional list of Italian citizens residing abroad with the right to vote (Article 5, paragraph 1, Law 459 of December 27, 2001; Article 5, paragraph 8, Presidential Decree No. 2 of April 2003, 104); the list of Italian voters who vote abroad for the elections to the European Parliament (Article 4 of Legislative Decree No. 24 of 1994 June 408, converted with Law No. 3 of 1994 August 483); the added lists of voters of a Member State of the European Union residing in Italy and who intend to exercise the right to vote in municipal elections there (Articles 1 and following of Legislative Decree no. 12 of 1996 April 197); the provisional list of Italian citizens residing abroad with the right to vote for the election of the Committee of Italians Abroad (Article 13 of Law no. 23 of 2003 October 286; Article 5, paragraph 1, of Law 27 December 2001, n.459; art.5, paragraph 8, presidential decree 2 April 2003, n.104; art.11, dPR 29 December 2003, n. 395).

Parties, movements and other formations of a political nature can use it lawfully, without first obtaining specific consent - on the basis of the information provided pursuant to art. 13 of the Regulation - personal data relating to members, as well as to other subjects with whom they have regular contact, for purposes of electoral propaganda and related political communication, since these are lawfully prosecutable activities, as they are included in those of a political nature provided in general terms in the 'deed of incorporation or in the statute, or strictly functional to the pursuit of these purposes (see Article 9, par. 2, letter d), Regulations).

On the other hand, the data that are not usable include the documentary sources held by public bodies due to specific sector regulations. This, for example, in relation to the registry of the resident population (articles 33 and 34 of the Presidential Decree of 30 May 1989, no. 223; article 62 of Legislative Decree 7 March 2005, no. 82). Based on the sector regulations, the lists of those registered in the registry can be released only "to public administrations that make a justified request, for the exclusive use of public utility [...] in compliance with security measures, communication standards and technical rules provided for by the decree of the President of the Council of Ministers 10 November 2014, n. 194, and by article 58 of the legislative decree 7 March 2005, n. 82 "(Article 34 of Presidential Decree 223/1989). The same is true for the archives of the civil status (art. 450 cc; dPR November 3, 2000, n. 396); for the files of citizens residing in the constituency at each consular office (Article 8 of Legislative Decree 3 February 2011, no. 71); for section electoral lists already used in polling stations, on which data relating to non-voters are noted and which can only be used to check the regularity of electoral operations (Article 62 of Presidential Decree no. 16 of 1960 May 570); for the data recorded in the polling stations by tellers and list representatives for the conduct of electoral operations. In fact, all these data must be treated with the utmost confidentiality in compliance with the constitutional principle of freedom and the secrecy of the vote, also having regard to the fact that participation or not in referendums or ballots can in itself also highlight a possible political orientation of the 'voter.

The data collected by public entities in the performance of their institutional activities or, in general, for the provision of services, are also subject to the same case in question - from non-usability. Likewise, the lists of members of professional registers and colleges do not include (Article 61, paragraph 2, of the Code); to the e-mail addresses taken from the national index of digital domiciles of companies and professionals and from the national index of digital domiciles of individuals and other bodies governed by private law, not required to be registered in professional registers or in the business register (Article 6-bis and 6-quater in Legislative Decree no. 7 of March 2005, 82).

Nor are the data made public in light of the regulations on transparency or publicity of administrative action by public administrations reusable (Legislative Decree 14 March 2013, n.33; l. 18 June 2009, n.69 ), as well as by other sector regulations. Consider, for example, the documents containing personal data published on the online praetorian register, the publicity of the competition results, the acts of attribution to natural persons of economic advantages in whatever way they are named, the organization charts of public offices also bearing telephone numbers and e-mail of employees, to information referring to employees of a public function. This is because the circumstance that personal data are made available online on institutional sites for the aforementioned purposes does not allow them to be freely reusable by anyone and for any purpose, including, therefore, the pursuit of electoral propaganda and related communication purposes. policy.

Specific legal provisions, on the other hand, provide that the holders of certain elective offices and other public functions may request information from the reference offices which are useful for exercising their mandate and for their participation in the political-administrative life of the entity. For example, municipal and provincial councilors have the right to obtain from the offices of the municipality and the province, respectively, as well as from their companies and dependent entities, all the news and information in their possession, useful for the fulfillment of their mandate (art . 43, paragraph 2, legislative decree 18 August 2000, n. 267). Specific provisions also provide for the exercise of this right by regional councilors. The aforementioned right of access to information is directly functional to the care of a public interest connected to the exercise of the elected mandate. This exclusive purpose constitutes, at the same time, however, both the assumption that legitimizes their access to the data but also limitation as access is allowed only for the specific purpose. Outside of the cases, which must be strictly connected to the elective mandate, it is therefore not permissible for Municipal, Provincial and Regional Councilors to request the relevant administration offices to communicate entire databases or to form specific lists " dedicated "to be used, perhaps for the hidden purpose of political communication.

Finally, it is also not permitted by subjects holding non-elective public offices and, more generally, public offices, to use the data acquired for the purposes of electoral propaganda and related political communication. of its institutional tasks.

Michele Gorga.jpg
Michele Gorga, lawyer and observatory member for the coordination of DPO, RTD and Reputation Manager

Personal data of voters and electoral consultations